Monday, October 29, 2012

Spying on a spouse

When a marriage deteriorates, some
people decide that they should spy on their spouse to either help them decide if they should get a divorce or to gain an advantage in a
divorce. Many people think that proof of adultery will gain them an
advantage in a custody battle or a financial battle in a divorce. In
Massachusetts and other states, proof of adultery seldom gains any
advantage at all. I once heard a Judge state that everybody commits
adultery now and nobody cares anymore. While it may not be true that
nobody cares, it does appear that Judges in Massachusetts ignore
proof of adultery when deciding divorce cases. Regardless of the
view of the Court, some parties in a marriage continue to believe
that it is important to spy on their spouse.

A recent article in the Wall Street Journal describes some instances of spouses spying on spouses and the
technology available. Generally, the technology allows the sound
recording of telephone calls and oral statements, video recording of
video telephone calls and actions of people, recording of use of
computers and cell phones, and gps tracking of cars and cell phones.
All of the actions can be considered illegal and possibly even
criminal. The Wall Street Journal article describes people who went
to jail for spying on a spouse.

Massachusetts prohibits the unconsented
recording of a person's voice. G.L. c. 272, § 99. The law covers
recordings made from telephone calls or any other wire transmission.
Violation of this law is a crime that can be punished by
imprisonment. Federal law also punishes the unauthorized recording
of a person's voice or telephone call. 18 U.S.C. § 2511.

Accessing someone's computer can be a
crime under Massachusetts law and Federal law. The Massachusetts
law, G.L. c. 266, 120F, has not been interpreted in a divorce
setting. However, the intent of the law is to spying on another
person's computer use. The Federal law, 18 U.S.C. § 1030, also
makes it a crime to access someone's computer without authorization.
Cell phones are small computers. I think that both state and federal
laws can be used to prosecute a spouse who records the usage of
another's cell phone.

Placing a GPS tracker on a spouse's car
may be considered stalking. In Massachusetts, three or more
instances of following another may be considered the crime of
stalking. G.L. c. 265, 43. Following a spouse by a GPS tracker
should be considered stalking as it has in other states.

In addition to potential criminal
liability for spying on a spouse, Massachusetts law creates a right
of privacy. G.L. c.214, § 1B. While this right is enforced
through civil actions and not criminal, it should act as a deterrent
to spying on a spouse. If the purpose of spying is to obtain an
advantage in a divorce, violation of the right of privacy may cause a
Judge to award money to compensate the victim spouse for the unlawful
spying actions. In addition, Judges don't want to reward unlawful
behavior and usually prevent the use of any
information obtained by unlawful spying.

Usually, spying in a marriage hurts the
person engaging in the spying behavior and not the victim who is
subject to the surveillance. Divorce lawyers should discourage such
behavior and advise clients to avoid the temptations to spy.

About this blog.

Alan Pransky is a lawyer in Dedham, Massachusetts. He has a general practice with an emphasis on litigation, family law, and real estate. This blog discusses matters relevant to Massachusetts law in the areas of family law, real estate, litigation, and other legal issues. The blog presents new developments in the law and other issues that relate to the topics covered. It is written for people who aren't lawyers to help them understand legal issues and how the Massachusetts courts function. The goal is to help people make better decisions as they interact with the courts and other people in the legal system.